The Death of "Due Process of Law"

On September 30, 2011, on orders from President Obama, U.S. citizen Anwar al-Awlaki was assassinated in Yemen. At the time, many people expressed concern over the assassination of a U.S. citizen--the assassination of someone born in New Mexico and educated in Colorado (B.S.), California (M.A.), and Washington D.C (incomplete Ph.D.). And many people defended the action, justifying it on the basis that he was aiding and abetting terrorists.

al-Awlaki had never been tried or convicted of any crime in any U.S. court.

Up until this point, in the United States we followed the law set forth in the Constitution. The Fifth Amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The key phrase I'd like to emphasize is, "No person shall be...deprived of life...without due process of law."

"Due process of law" is a critical concept in the functioning of any society that claims to hold itself to the rule of law. According to Wikipedia's article on the "Due Process Clause":

The Supreme Court of the United States interprets the Clauses as providing four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights.

[Procedural due process] aims to protect individuals from the coercive power of government by ensuring that adjudication processes under valid laws are fair and impartial (e.g., the right to sufficient notice, the right to an impartial arbiter, the right to give testimony and admit relevant evidence at hearings, etc.).

[Substantive due process] aims to protect individuals against majoritarian policy enactments which exceed the limits of governmental authority—that is, courts find the majority's enactment is not law, and cannot be enforced as such, regardless of how fair the process of enforcement actually is.

On March 5, 2012 Attorney General Eric Holder gave a speech at Northwestern University Law School in Chicago. In this speech he defended the administration's actions and discussed how they unilaterally redefined the meaning of "due process of law":

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. 'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

I don't know how anyone can reconcile his statements with the above discussion on the definition of "due process of law."

It appears to be the exact same type of word games that the Bush administration played in order to permanently incarcerate people at Guantanamo Bay without trials. By simply calling them "enemy combatants" instead of "prisoners of war" or "criminals" they made a linguistic end-run around both the U.S. Constitution and the Geneva Conventions. The same way that torture was illegally used by calling it "enhanced interrogation."

Using these kinds of language tricks one can get away with anything and the rule of law collapses.

I'm concerned for our future when our rights can simply be redefined away.

2 thoughts on “The Death of "Due Process of Law"”

I remember specifically a conversation I had with Dad once. He was trying to explain an article to me for my Current Event (remember those?). I don't remember the context...but given the time frame it probably had to do with Saddam Hussein. I said "Why don't they just send someone in the army to kill him?" and Dad said "Because we aren't in the habit of assassinating other country's leaders to solve problems." Clearly someone(s) else has decided my 6th grade mentality is the easiest option for dealing with threats. Although, to play devil's advocate, I am forced to agree that in a post-9/11 world if I were in charge of the country and felt I had credible knowledge that someone who had effectively defected from the country was intent on and planning to and capable of harming American citizens it would be very difficult to balance due process with a duty to protect and serve. I am also forced to imagine that similar events have happened many times throughout history, the difference being the public acknowledgment of the actions.

We have exceptions to proper due process in cases of imminent threats. When a person holds hostages the use of deadly force can be authorized in order to protect the innocent. We also don't apply due process on the battlefield when opposing enemy forces.

However, al-Awlaki was not an imminent threat (though probably an eventual threat) and was not on a battlefield. As the "war" on terrorism cannot and will not be won, because there is no organized opposition to defeat or surrender, calling it one in order to justify civil rights violations is just another instance of linguistic gymnastics.

One part of it that bothers me is that it wasn't even a time-sensitive issue. The assassination approval was given in April 2010, 18 months before he was actually killed. There was plenty of time to include a court in the decision making process. They could have made the lesser breach of civil rights by holding a trial in absentia, convicting him, and sentencing him to death. That would have at least been an homage to due process.